דִּינֵי מָמוֹנוֹת בִּשְׁלשָׁה. גְּזֵלוֹת וַחֲבָלוֹת בִּשְׁלשָׁה. נֶזֶק וַחֲצִי נֶזֶק, תַּשְׁלוּמֵי כֶפֶל וְתַשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה בִּשְׁלשָׁה. הָאוֹנֵס וְהַמְפַתֶּה וְהַמּוֹצִיא שֵׁם רַע בִּשְׁלשָׁה – דִּבְרֵי רַבִּי מֵאִיר. וַחֲכָמִים אוֹמְרִים: מוֹצִיא שֵׁם רַע בְּעֶשְׂרִים וּשְׁלשָׁה, מִפְּנֵי שֶׁיֶּשׁ בּוֹ דִינֵי נְפָשׁוֹת:
Civil suits are heard before three judges. Cases of theft or mayhem are also heard before three. Cases concerning claims for full or half damages, double indemnity and quadruple and quintuple indemnity are also heard before three. Charges of rape and seduction are heard before three – and charges of defamation also, according to the opinion of Rabbi Me'ir; the rest of the sages hold that charges of defamation are to heard before a panel of twenty-three judges, since they may develop into a capital charge.
1:
First, a word of exculpation. I am a rabbi and not a lawyer. So if I use any terms from systems of law other than the halakhic one there is no guarantee that I might not misuse them. Your forgiveness in advance – and your corrections via private e-mail – are earnestly solicited.
2:
Halakhic jurisprudence basically recognizes two kinds of action at law. Court cases either belong to the category of "Dinei Mamonot" or to the category of "Dinei Nefashot". The former can be literally translated as "cases involving money" and the latter as "cases involving life". These literal translations have led to a mistaken identification of "Dinei Mamonot" with what is known in the Anglo-Saxon juridical tradition as "Civil Law", and of "Dinei Nefashot" with criminal law. As we shall see, this kind of categorization is very misleading. A better path to follow would be to categorize according to the possible outcome of the case. The halakhic juridical process basically recognizes only two possible outcomes for a case tried by Torah law: either the accused will compensate for her act by paying a fine ("Dinei Mamonot") or he will compensate for his act by forfeiting his life ("Dinei Nefashot").
3:
These two categories, Dinei Mamonot and Dinei Nefashot, give rise to two different types of court before which these cases are heard. We shall learn more about the composition of courts dedicated to Dinei Nefashot in the next mishnah; our present mishnah is concerned with an elaboration of the major types of suit that come under the rubric of Dinei Mamonot – suits in which the party found guilty will have to "write a cheque" for compensation.
4:
Before we continue, however, we must clarify some very basic differences between the halakhic system of court procedure and that which we all recognize in our own western societies. In the halakhic system the court acts in the name of Torah and by its authority; the State, the Crown, the People have no standing whatsoever. Therefore, this is a system that must cater for the absence of a publicly maintained police force – both to prevent crime and to detect crime. Thus there can be no public prosecutor, and in that sense all suits are civil suits – charges that one citizen brings against another – be the charge one of causing damage to limb or property (in an automobile accident, for instance) or one of homicide. The former charge would be heard before a panel of three judges since its eventual outcome would have to be in monetary compensation; the latter would be heard before a panel of twenty-three judges, since, in theory, it could result in a death sentence. In all cases, however, it is the citizens making the charge that constitute the prosecution.
5:
Dinei Mamonot are heard before a panel of three judges. Unlike Dinei Nefashot, these judges do not have to have special qualifications: they can be ordinary people sitting as what we would call today a court of arbitration. However, this is based on the assumption, explained in the Gemara [Sanhedrin 3a] that in any group of three Jews there must be at least one who has a modicum of halakhic learning! (I hope it will not be considered calumnious if I suggest that such an assumption would be unjustified in our day and age!) Obviously, such courts were 'ad hoc' courts, and later on in our tractate we shall learn how they were set up.
6:
In order to avoid misunderstandings, perhaps I should explain at this point that the panels of judges [Dayyanim] were judges of both fact and law. In other words, they fulfilled the function of both judge and jury in the Anglo-Saxon system of law.
7:
Dinei Mamonot could also be heard before a sole judge [Sanhedrin 5a], but then the judge would have to be a "mumĥeh la-rabbim" [publicly recognized specialist]. This term means that the sage had received a licence from the lay leadership – in Babylon from the Exilarch, or from the President of the Sanhedrin in Eretz-Israel. This licence ["reshuta"] had another very important function. All judges of Dinei Mamonot, if they erred in their judgment, could be sued by the wronged party for monetary redress (out of the judge's own purse); but sages who had received a licence from the lay leadership could not be sued for errors in judgment.
8:
An interesting story is recounted [Sanhedrin 33a] in this regard. On one occasion the following question came before Rabbi Tarfon [Eretz-Israel, beginning of 2nd century CE]: could the meat from a cow that had been ritually slaughtered be considered kasher if the cow's womb had been removed during its lifetime? Rabbi Tarfon obviously considered that no cow could survive for long after such an operation, and therefore determined that the meat should be "cast to the dogs" [Exodus 22:30], since the cow was 'dying' at the moment of slaughter. The owner of the cow (who presumably had hoped to make a fine profit, appealed to the sages of the Sanhedrin assembled in Yavneh. Todos the physician reported to the assembly that no cow or pig could be exported from Alexandria [in Egypt] unless its womb had first been removed – so that it could not subsequently give birth. (This was a measure to protect the rarity of these animals of superior quality, so that they could not be bred outside Egypt and so that their value would remain high.) This evidence obviously indicated that Rabbi Tarfon had been wrong in his assumption that the cow in question could not have survived the hysterectomy; this, in turn meant that the meat that Rabbi Tarfon had "fed to the dogs" was kasher, after all. Rabbi Tarfon immediately recognized his mistake with the rueful remark, "There goes your donkey, Tarfon!" – meaning that he would have to sell his donkey in order to compensate the owner of the cow out of his own pocket. A young student of his, later to be come the eternally renowned Rabbi Akiva, told him not to worry: he need not compensate the owner of the cow since he (Tarfon) was a "mumĥeh la-rabbim" [a publicly recognized specialist].
To be continued.
Shabbat Shalom to everybody.
